Federal Civil Asset Forfeiture

Civil asset forfeiture is an often-used tool, and a highly controversial one. This is also referred to as "in rem" forfeiture because it's a civil lawsuit against a thing, instead of a person. These cases often have funny-sounding names, like United States v. One BMW, or United States v. $500,000, but as you will quickly recognize and your Federal civil asset forfeiture attorney will clearly explain, these cases aren't funny at all. They're serious cases levied against property the government believes was used in a crime. To contest the forfeiture, you must put in a claim as a "third-party claimant." What's remarkable about these actions is that the government can forfeit property on a lower standard of proof (preponderance of the evidence) without ever actually securing a criminal conviction.

Federal civil asset forfeiture proceedings are not part of any criminal case. The United States government files a separate civil lawsuit “in rem” against property itself that it believes was used to commit a crime. Because this has nothing to do with any criminal case, civil asset forfeiture lawsuits can be filed before an indictment, after an indictment, or even if an indictment is never pursued in the first place. By filing a civil lawsuit against property, the government is basically stating that property should be confiscated and that anyone wishing to asset a claim and contest that confiscation should step forward and do so.

These cases are very much like any other civil case. The United States Attorney’s Office is the plaintiff in the case, and they file a complaint that details how certain property is allegedly tied a federal crime. Claimants are required to file a claim and answer the complaint, pursuant to 18 USC 983 and Supplemental Rule G of the Federal Rules of Civil Procedure, within a certain period of time. Then, the case goes through civil discovery and depositions and motions. The Seventh Amendment guarantees a trial by jury where the U.S. Attorney’s Office has to establish the forfeitability of property by a preponderance of the evidence.

Federal Civil Asset Forfeiture: The “Innocent Owner” Defense

But even if the government wins in establishing that, the case is not over. In order to protect innocent owners of property, those who didn’t know that their property was being used to commit a crime or those who took reasonable steps to stop the illegal use of their property, there is an opportunity to assert the so-called “innocent owner” defense. That defense is codified at 18 USC 983(d). Under that defense, an innocent owner has the burden of showing that he has an ownership interest in the property and that his ownership is innocent.

Under civil forfeiture, unlike criminal forfeiture, the government has to move to confiscate specific property used to commit a crime. It cannot move against substitute assets, and there is no way to get a money judgment against a defendant. If the money that a defendant received as part of a crime is spent, the government cannot just go after non-traceable money.

So, in short, there are many advantages to civil forfeiture for the government, including that the United States Attorney does not need to institute a criminal action and only has to be able to show proof by a preponderance of the evidence that property is forfeitable. However, there are strict filing deadlines for prosecutors dealing with civil forfeiture cases, and the forfeiture is limited to property directly traceable to the alleged offense.

Do not maintain a false sense of security because a Federal civil asset forfeiture case is not a criminal action. Do not be lulled into thinking procedure does not matter. One mistake or misjudgment can mean the difference between losing your property and assets or securing what is rightfully yours. Educate yourself and put your best defense into motion. Let the former prosecutors and asset forfeiture lawyers at Crotty Saland PC let their experience, knowledge and advocacy work for you.

Call the Federal asset forfeiture lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.

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